[1982] OLRB Rep. December 1892
2286-81-R United Brotherhood of Carpenters and Joiners of America Local 249, Applicant, V. R & H Doornekamp Sons Ltd., Respondent, v. Group of Employees, Objectors
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: Douglas J. Wray and James Caron for the applicant; J. P. Wearing and H. Doornekamp for the respondent; J. Michael Woogh, Ron Moore, Ron germain and Bernie Duhamel for the group of employees.
DECISION OF IAN SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON; December 16, 1982
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
We find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.
We further find that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 117 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
We further find, pursuant to section 144(1) of the Act, that all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in the County of Lennox and Addington, the County of Frontenac, and the geographic Townships of Rear of Leeds and Lansdowne, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The applicant filed evidence of membership on behalf of six persons. The evidence of membership takes the form of six combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made to the union within the six month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
At the time of the filing of the application the respondent was engaged in building an addition to the Strathcona Paper Mill. According to the respondent's filings, it employed three employees in the bargaining unit on the date of the making of the application. The applicant's membership evidence relates to two of these employees. The applicant contends that three additional persons, all of whom are union members, should also be regarded as having been employed in the bargaining unit at the relevant time. Two of these individuals are the subject matter of a section 89 complaint in File No. 2423-81—U. The third person is claimed by the respondent to be a labourer and not a carpenter or carpenters' apprentice. There is no need at this time to make any final determination as to the status of the three individuals in dispute since it is clear that no matter whether there were three, four, five or six employees in the unit on the date the application was made, more than fifty-five per cent of the employees were members of the applicant on February 16, 1982, the terminal date fixed for this application and the date which we determine, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
There was also filed with the Board two timely statements of desire in opposition to the application. Statements of desire are not regulated by the Act as directly, or precisely, as union membership evidence. There is no statutory definition equivalent to section 1(l)(1), nor is there any requirement for a monetary payment (in the nature of consideration confirming the acting of signing), or a declaration of regularity similar to Form 80. Nevertheless, the existence of statements of desire appears to be contemplated by both section 103(2)(j) of the Act and Rule 73 of the Rules of Practice; and in any event, the Board has a long established practice of accepting statements of desire and exercising its discretion under section 7(2) of the Act to order a representation vote where: the statements are voluntary, there is evidence given in accordance with Rule 73, and the statements contain the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt that the union's members continue to support its certification.
In all, four persons signed the statements of desire. One of the four was not an employee in the bargaining unit. The other three were the three persons who were clearly bargaining unit employees at the relevant time. As already indicated, the applicant filed membership evidence with respect to two of these three employees. Having regard to the numbers involved, if the two union members who signed a statement of desire did so voluntarily, the Board's normal practice would be to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote.
Before the Board will direct the taking of a representation vote on the basis of an employee statement of desire, it must be satisfied that when union members signed the document evidencing an apparent change of heart, they did so voluntarily. Often, as in the present case, a statement of desire in opposition to a trade union's certification will be signed by employees who have indicated their support for the trade union only a short time before; and while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a statement opposing the union. Frequently, such documents are circulated by employees who, in their opposition to the union, will be perceived as being aligned in interest with the employer. In these circumstances, an employee may sign a statement of desire because he fears that a refusal to do so will be made known to his employer and result in reprisals. Similarly, an employee may be motivated to sign a statement of desire because of suggestions that his continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case could one regard his signing of the statement of desire as truly voluntary, for in both cases it would result from a perceived threat to his job security.
There was placed before the Board certain evidence which would indicate that Mr. Henrick ("Henny") Doornekamp, the respondent's president, was a moving force behind the statements of desire and that he offered to assist the group of objecting employees with their legal and transportation costs. The evidence on point was given by two union organizers, namely, Mr. James Caron and Mr. Pat White. Their evidence consisted of statements concerning what they had been told by one of the employees, Mr. Larry Duhamel. We accept that Mr. Caron and Mr. White accurately repeated to the Board what was said to them by Mr. Duhamel. We are satisfied, however, that Mr. Duhamel's statements to them were untrue and had no basis in fact.
Before starting to work for the respondent only a short time before, Mr. Duhamel had operated a small business of his own. Because he had been the proprietor of his own business, Mr. Duhamel felt that he would not qualify for any unemployment insurance benefits should he become unemployed. In these circumstances he wanted to ensure some degree of job security for himself. Mr. Duhamel applied to become a union member, at least in part, because he felt that if he ceased working for the respondent, the union would be able to place him on other jobs. Notwithstanding his action in joining the union, Mr. Duhamel sought to avoid being viewed by either management or other employees as a union supporter. He signed one of the statements of desire in opposition to the union's application. Having done so, he then sought to ensure that he would remain in the good graces of the union by purposely misleading the two union organizers into believing that he had signed the statement of desire as a result of management pressure and because management was actively supporting the group of objectors. In fact, however, management played absolutely no role with respect to the origination or circulation of the statements of desire, and gave no support to the group of objectors.
Before leaving the issue of Mr. Duhamel's credibility, we would comment on certain of his evidence with respect to the circumstances under which he signed an application for membership in the union. Mr. Duhamel testified that Mr. Caron and Mr. White, the union organizers, told him that if he did not join the union, and the union was later certified, he would be out of a job. According to Mr. Duhamel the organizers also stated that if he joined the union they would seek to have him made union steward on the respondent's job, in consequence of which he would be the last person to be laid off. Mr. Duhamel also stated that he was advised that the union would guarantee him work on other job sites. Having carefully compared Mr. Duhamel's testimony against that of Mr. Caron and Mr. White, and taking into account our view of the relative credibility of the individuals involved and the reasonableness of their testimony, we are of the view that Mr. Duhamel's evidence on these matters cannot be believed. Instead, we accept that the issue of possible work on other job sites was raised by Mr. Duhamel and that the union organizers indicated only that he might be able to get such work either by placing his name on a list of union members seeking work, or by attempting to get work in the territorial jurisdiction of another local of the Carpenters' Union. Mr. Caron expressly told Mr. Duhamel that the union could not guarantee him work. Further, it was Mr. Duhamel's wife who raised the possibility of Mr. Duhamel being made a steward, in response to which the organizers indicated that this was a matter outside of their control. We are satisfied that at no time was Mr. Duhamel told that if he did not join the union and the union was certified he would lose his job. Instead he was advised that if the union were certified he would be given seven days to join the applicant local under conditions set by the local.
Once the evidence of Mr. Duhamel, and the evidence of others as to what Mr. Duhamel told them is set aside, the remaining evidence is by and large consistent. What discrepancies exist are for the most part not major and appear to be the result of faulty memories and differing perceptions rather than any deliberate attempt to mislead the Board. Having carefully reviewed this evidence, we are satisfied that the following accurately reflects the relevant events.
The respondent is a construction firm which employs a relatively small number of carpenters. It is not disputed that at the time the carpenters were hired, or shortly thereafter, they were asked by Mr. Henny Doornekamp if they were union members. It is of some interest to note that notwithstanding Mr. Doornekamp's questions in this regard, of the three employees who are agreed to be in the bargaining unit, one, Mr. R. Germain, has been a member of the Carpenters' Union for about ten years while another, Mr. L. King was an ex-member who had allowed his membership to lapse. The respondent's non-working foreman on the Strathcona Mill site, Mr. Reno Serone, was also a member in good standing of the union.
Mr. Germain, is a long time friend of Henny Doornekamp. In cross-examination Mr. Germain was asked if there had been any discussion about the mill taking over the job if the union came in. Mr. Germain's response was that he believed that he had heard something like that from Henny Doornekamp. When pressed further, Mr. Germain indicated that he had no recollection of when the statement might have been made, and stated "I just vaguely remember it". Given the uncertainty and vagueness of Mr. Germain's testimony on this point, we accept the testimony of Mr. Doornekamp that in a conversation with Mr. Germain in January of 1982 he had mentioned that the Strathcona Mill had let go one of its unionized contractors. There was no reference at all in the comment to the respondent possibly closing down, and we are satisfied that at that point in time Mr. Doornekamp was unaware of the applicant's organizing campaign. Indeed, on the evidence it appears likely that the union had not yet started its organizing campaign.
The applicant applied to be certified on February 2, 1982. The respondent received notice of the application on February 10th. Mr. Henny Doornekamp, the respondent's president, immediately sought advice from a manager at the Strathcona Paper Mill about what he should do. He was advised to post the Form 75, Notice to Employees which he had received from the Board, and then take a "hands-oft" position and not discuss the matter with any of the employees. Henny passed this advice on to his brother Renny, who also holds a managerial position with the respondent. On the evening of February 10th the Form 78 notice was posted in the respondent's construction shack at the job project.
On the evening of February 11th, Mr. Duhamel telephoned Mr. Ron Moore, a carpenter who had been employed by the respondent for some three years, but who at the time was away from work due to a foot injury. During their telephone conversation, Mr. Moore asked what was going on at work, to which Mr. Duhamel replied that the applicant trade union was trying to "get in". Mr. Moore, who had not previously been aware of the applicant's organizing campaign, indicated that he was opposed to the applicant being certified. Mr. Duhamel replied that he was as well. It is this effort on Mr. Duhamel's part to be "all things to all people" to which we have already referred.
On the same evening Mr. Moore drafted a statement of desire in opposition to the application. He did so without having discussed the matter with anyone in management. At coffee-break time on the morning of February 12, 1982, Mr. Moore arrived at the job site with his statement of desire and stayed for about twenty minutes. During this period Henny Doornekamp was away from the job site. Renny Doornekamp was on the site, but because he was working on equipment some distance away, he likely was not aware of Mr. Moore's visit. When he arrived on the job site, Mr. Moore first encountered Mr. Reno Serone, a non-working foreman. Although at the time he was serving in a managerial capacity, Mr. Serone was known to be a long-time member of the Carpenters' Union. Indeed at the suggestion of Mr. Duhamel, the two union organizers had previously visited Mr. Serone to get him to support the union's certification application, but had dropped the matter when Mr. Serone advised them that he was out of the bargaining unit. When Mr. Moore encountered Mr. Serone he indicated that he had a "petition" for the men to sign. Mr. Serone replied that it was a matter that did not involve him since he was a non-working foreman, and he walked away. While Mr. Moore was talking to Mr. Serone, Mr. Duhamel and Mr. Germain came up to join them. Mr. Moore asked them to accompany him to the construction shack. On the way to the shack, Mr. Moore waved to another employee, Mr. Larry King, to join them.
Inside the shack Mr. Moore asked the three employees to sign the statement of desire. Mr. King declined to do so, but both of the other men signed. Mr. Moore then left the job site and apparently mailed the statement of desire to the Board.
Not long after Mr. Moore had left the job site, Mr. King advised Mr. Germain that he had decided to sign a statement of desire. At lunch time, Mr. Germain telephoned Mr. Moore's house and left a message to this effect. Mr. Moore then wrote out a second statement of desire and returned to the job site. He and Mr. King went into the shack so that Mr. King could sign the statement. As the two men were entering the shack, they encountered Mr. Renny Doornekamp coming out. Renny Doornekamp first inquired about Mr. Moore's health, and then asked what he was doing at the job site. Mr. Moore replied that it was in connection with the union, at which Renny Doornekamp raised his hands and walked away. Once inside the shack, Mr. King indicated to Mr. Moore that because of certain domestic problems, he felt he would be moving away and so it did not matter whether he signed a statement or not. Mr. King then signed the statement of desire which Mr. Moore had brought with him.
After leaving the job site with the second statement of desire, Mr. Moore set out to drive to Deseronto to mail the document. While driving along a township road Mr. Moore passed Henny Doornekamp who was driving the other way. The two men recognized each other and stopped their cars. Henny Doornekamp got out of his car and went over to talk to Mr. Moore. After Mr. Doornekamp had inquired about Mr. Moore's foot, he asked why he was out and about. Mr. Moore's response was that it was to "get names" to oppose the applicant's certification, and that "all of the men had signed." Mr. Doornekamp's only response was that he could not discuss the matter, and the two men then parted company.
When Henny Doornekamp arrived at the job site he was approached by Mr. King who advised him that he was quitting and wanted his separation slip and any money owing to him. Mr. King told Mr. Doornekamp that he had joined the union because he wanted to regain his lapsed union status, but that he had also signed a statement of desire. At some point, either on the same day or shortly afterwards, Mr. Germain tried to draw Henny Doornekamp into a discussion about the union, but Mr. Doornekamp refused saying he was not supposed to talk about it. At a later point in time, after the terminal date, Mr. Doornekamp asked Mr. Sean Hicks, who he had understood to be a labourer, if he was a carpenters' apprentice and whether he had joined the union. Mr. Hicks replied "no" to both questions. We would note that Mr. Hicks initially testified that this conversation had occurred on February 2, 1982, but later in his testimony indicated that he was not certain about the date. In these circumstances we have accepted Mr. Doornekamp's testimony that he had taken care not to discuss the matter with Mr. Hicks until after the terminal date.
Mr. Moore made the arrangements to retain a lawyer to assist the group of objectors in presenting their case before the Board. At Mr. Moore's request, he was joined at the lawyer's office by Mr. Germain and Mr. Duhamel. The evidence is that Mr. Duhamel asked Henny Doornekamp for time off so that he and Mr. Germain could see a lawyer, and that the respondent provides employees with time-off without pay to attend to personal matters. The three employees involved agreed to split the lawyers account three ways. No financial assistance was requested or received by the group of objectors from management.
As indicated above, the Board is always concerned that employees may have signed a statement of desire in opposition to a union s certification due to a concern that a refusal to do so might become known to their employer and result in reprisals. In the instant case, because of Mr. Moore's uninvited comment at the road side, Mr. Henny Doornekamp did come to learn that the employees had signed a statement of desire. This comment was, however, made after all of the signatures had been obtained on the statements and accordingly, Mr. Moore's comment could not have affected the documents' voluntariness. Equally, any later conversations between Henny Doornekamp and various employees cannot have a bearing on the voluntariness of the statements at the time that they were signed.
We turn now to consider the actual circumstances under which Mr. Duhamel and Mr. King signed the statements of desire. For our purposes, there is no need to scrutinize the circumstances surrounding the signing of the document by a third employee, since no membership evidence was submitted with respect to him.
At the time Mr. Duhamel signed a statement of desire, Mr. Henny Doornekamp was not on the job site, and Renny Doornekamp was some distance away. Accordingly, Mr. Duhamel likely did not sign out of a concern that either of the brothers might actually see him refusing to sign a document in opposition to the union. Mr. Duhamel did see Mr. Serone, the non-working foreman, talking briefly to Mr. Moore. In other circumstances, this might have raised a concern on Mr. Duhamel's part that Mr. Moore was on the job site with management's permission and support. Such a concern did not likely arise in this case, however. Mr. Serone was a known member of the union, and hence, unlikely to be viewed as being involved in any action against the union. Further, Mr. Duhamel had earlier suggested to the union organizers that they approach Mr. Serone about supporting the union's certification. This indicates that Mr. Duhamel likely regarded Mr. Serone as someone who would come within the bargaining unit. When these two matters are taken into account, we feel it unlikely that Mr. Duhamel would have concluded from Mr. Moore's brief discussion with Mr. Serone that management supported Moore's actions. Further, since Mr. Serone was not present in the job shack when the employees were asked to sign a statement, Mr. Duhamel would not likely have signed out of a concern that Mr. Serone would be aware of any refusal to do so.
Mr. Duhamel's own testimony as to why he signed a statement of desire is of little assistance in assessing the voluntariness of his signing. At one point, Mr. Duhamel agreed with union counsel that he had signed the document to protect his "cover”, but he then immediately denied signing as a result of concern that the respondent would take action against him if it discovered that he had joined the union. Instead, he stated that his only concern was that he might lose his job if the union were certified. We have already indicated our view as to the weight that can be placed on Mr. Duhamel's testimony. We have concluded, however, that at the time Mr. Duhamel signed the statement of desire, there was no reasonable basis for him to believe that a refusal to sign would likely result in some sort of action being taken against him. This being the case, we are satisfied that we should accept his signing of the document as a voluntary act.
The only other relevant employee to sign a statement of desire was Mr. Larry King. When Mr. King and Mr. Moore entered the job shack so that Mr. King could sign the document, they met Mr. Renny Doornekamp on his way out. Mr. Moore volunteered to Mr. Doornekamp that he was on the job site in connection with the union. In other circumstances this contact with Mr. Doornekamp just prior to Mr. King signing the document might well have been fatal. However, Mr. King had already decided to sign a statement of desire and had communicated this fact to Mr. Moore through Mr. Germain. Further, Renny Doornekamp, by his actions, clearly indicated he wanted nothing to do with any discussion of the union, either pro or con. Accordingly, in our view, Mr. King would not likely have been unduly influenced by the chance encounter with Mr. Doornekamp. This being the case, we are also prepared to accept that Mr. King signed the statement of desire voluntarily.
Having regard to the above, we are of the view that prior to the terminal date two union members voluntarily signed a document indicating they no longer supported the applicant's certification. This being the case, absent consideration of the matters referred to below, we would be prepared to exercise our discretion under section 7(2) of the Act to direct the taking of a representation vote.
The applicant has requested that if it is not otherwise entitled to automatic certification, that the Board certify it outright pursuant to section 8 of the Act. In support of this request, the applicant relies on the particulars set out in File No. 2423—81—U, being a complaint under section 89 of the Act. In consequence, this matter will continue for hearing in conjunction with the section 89 complaint.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I disagree with the majority decision that the "statement of desire" in this case is voluntary.
The Board has found in a considerable number of cases, that it must be guided by the overall environment in the work place and the cumulative impact of events. If the evidence establishes that management has created a "climate" which thwarts voluntary expression of the employees then the statement of desire cannot be accepted.
The evidence of Henny Doornekamp, one of the principals of the company, and other witnesses, establishes that the company created a "climate" that gave a clear message to the carpenter employees that this company was concerned and was on guard against the possibility of being organized by the carpenters union, and was supportive of the petition.
Mr. Doornekamp told the Board that he and his brother operated a small sewer and watermain construction company. When he received the contract for the Strathcona Paper Mill project he hired Mr. Reno Serone to supervise the carpentry work. Mr. Serone suggested to him at one time that he should consider going union so that the company could bid work on larger types of projects. Mr. Doornekamp said he agreed with him, but at the present time he was just a sewer and watermain contractor and didn't want to be a union contractor unless the company got bigger.
Mr. Ron Germain gave evidence that he was a long-time friend of the Doornekamps and he didn't believe the Doornekamp company should be organized. Under cross-examination, Mr. Germain admitted that Henny Doornekamp had told him if the union came in, Strathcona Paper Mill would take over the work and Doornekamp could be out. Henny Doornekamp admitted under cross-examination that he could have told Germain this.
Mr. Sean Hicks gave evidence that around the first of February at about 9:30 p.m. or 10:00 p.m. Henny Doornekamp phoned him at home and asked him if he was a carpenter apprentice or a labourer and if he had signed a union card. Mr. Hicks said he advised Mr. Doornekamp that he was a labourer and had not signed a union card. He said that Mr. Doornekamp also asked him if he knew whether Larry King had signed a union card. Mr. Hicks told him he didn't know. Mr. Hicks said that the next day at work Henny Doornekamp went up to Larry King and asked him if he had signed for the union. Mr. Doornekamp admitted he had asked Mr. Hicks if he had signed a union card, but could not recall asking him about Larry King signing.
Mr. Doornekamp admitted under cross-examination that after he started hiring carpenters in the latter part of October and early November of 1981 for the Strathcona Paper Mill project, that he asked Mr. Duhamel and Mr. Chisholm when he hired them as carpenters, if they were members of the Carpenters' Union.
Mr. Doornakamp said "when I met Ron Moore on the highway on February 11th he told me he got all the men to sign the petition. I just assumed this was a way to get out of this, I just assumed what type Ron Moore was. First of all he wasn't a qualified carpenter. I am a civil engineer." Another surprising statement from Mr. Doornekamp came out during cross-examination after he denied that the company paid for the lawyer. Mr. Wray, counsel for the applicant union, asked the following question, "Did you ask them who was going to pay the lawyer?" "No I depend on their loyality".
It is obvious from the foregoing evidence that the employees would be aware that Mr. Doornekamp was very concerned about the union getting certified, and that he would be supportive of a petition being circulated in an endeavour to defeat the union's certification application.
The evidence of Mr. Ron Moore, the person prepared the petition and conducted its circulation, in my opinion is suspect. Under examination in chief he stated he hadn't discussed the petition with management, but under cross-examination and questions from the Board, the evidence changed. The evidence is that he told Mr. Serone, the carpenter supervisor (clearly management) that he had a petition against the union and wanted to talk to the carpenters in the shack. This was the day he
appeared on the project, February 11th. Later when he met Mr. Henny Doornekamp on the highway the same day, he told him all the men had signed the petition.
Other events that must be considered in determining at their cumulative impact are that Mr. Germain and Mr. Duhamel were given a half a day off work on March 9th to accompany Mr. Ron Moore to visit a lawyer in Kingston, for the purpose of preparing for the up-coming Labour Board hearing scheduled for March 12th in Toronto. Another concern is who paid the lawyer. Mr. Moore's evidence is that he put $200.00 down and Duhamel and Germain were to each pay one third of the lawyer's fee. The evidence of Pat White, one of the union organizers, is that Duhamel told him, the night Duhamel had returned from the lawyer's office, that Ron Moore had told him that the company would pay for the lawyer as well as time off work, and the company would pay for the trip to Toronto to attend the Board hearing. Considering that Duhamel's evidence is suspect as stated by the majority, and considering that Ron Moore was off work for three months with an injury, and that Bernie Duhamel was in financial difficulties, it is difficult to believe that these two employees could afford to pay a lawyer to attend three days of Board hearings in Toronto. The evidence of Mr. Pat White, should be accepted. The question is whether Bernie Duhamel told Mr. White a lie or not.
The cumulative events, established by the evidence are as follows:
(a) Mr. Henny Doornekamp gave a clear message to all the carpentry employees that the company didn't want any dealings with the union, he was pleased when Ron Moore told him all the men had signed the petition and said he assumed this was a way to get out of this. Mr. Doornekamp freely gave the only two carpenters remaining on the project, half a day off work March 9th to attend at the lawyer's office for the purpose of processing the petition. There is a natural suspicion that the company may also have paid the lawyer.
(b) Mr. Serone, the carpenter supervisor, who is clearly managerial allowed Ron Moore, after he had told him he had a petition against the union, to call the carpenters off their work and into the company's shack for a 20 to 30 minute meeting, to sign the petition.
(c) Ron Moore, a long time employee of the company, and the organizer of the petition, in my opinion didn't willingly give the Board the true story in regard to the preparation and circulation of the petition. I believe it was reasonable for the employees to view Mr. Moore of aligning himself with the interest and wishes of the company when he was given a free hand to circulate the petition on the project during working hours.
- Management in this case created an environment and general atmosphere in which any reasonable person would naturally believe that management supported the petition, and if they didn't sign it this would be known by management. In Morgan Adhesives of Canada Limited [1975] OLRB Rep. Nov. 813, the Board commented:
"28. There is a natural suspicion which attaches to a statement of desire following closely upon a union organization campaign. The Board must assure itself that the "change of heart" indicated by employees who sign the petition in opposition to the union after having indicated support for that same union, is a free choice unimpeded by overt or subtle pressures. The rationale giving rise to this suspicion is well summarized in the Pigott Motors (1961) Ltd. case, 63 CLLC 16, para. 16,264 where the Board stated:
'... In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderably number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.'
(emphasis added)
- The finding of the Board is not intended to imply collusion or other conscious or deliberate improprieties on the part of either the objectors and/or the respondent company. There is no evidence before the Board, which would support such a finding. The Board, however, must be guided by the overall environment in the workplace and the cumulative impact of events. In a not inconsiderable number of cases the Board has found on the basis of the cumulative effect of the evidence before it that unintentional acts or tacit behaviour by management served to create a "climate" which thwarted voluntary expression. In the Imperial Paving case (1966) OLRB M.R. July at page 255 the Board said:
……The task facing the Board is to determine whether the petitions cast doubt on the evidence of membership so as to require confirmation of that evidence by means of a representation vote. In making this determination the Board is concerned, primarily, with the question as to whether the petition were signed freely and voluntarily and truly represent the wishes of the employees. The fact that management may have intentionally set out to unduly influence the employees to sign petitions, contrary to the Act, is only one facet of the problem. Management may, by its actions, influence employees unintentionally and quite by accident but if the Board is satisfied that the employees who signed the petitions were so influenced this may well be a decisive factor in determining the overall weight to be given the evidence of membership."'
I believe that the majority have not thoroughly considered the cumulative impact of all the facts that have been revealed from the evidence.
I find the hand of management has been involved in the petition both obvious and devious, and it was reasonable that the employees would have a perception that if they did not sign the petition circulated by Ron Moore, management would become aware of it. It is a fact in this case that management did become aware that all the carpenter employees did sign the statement of desire.
I find that the statement of desire in this case is not a voluntary expression of the employees who signed it. I also do not believe that the true wishes of the employees could ever be ascertained in a representation vote, under the circumstances prevailing at the work place in this case. The statement of desire should not be considered by the Board and a certificate should issue to the applicant.